Friday, August 26, 2016

How often do you think of Richard III that
late medieval king of England who had a crooked spine and was villainized by
William Shakespeare in the eponymous play written two hundred years after his
death?

I must admit. I seldom reflect on him
either. But his contribution to our legal system is tremendous. One of the big things
Richard III gave us was something that still remains part of our society—bail.

Yes, during his turbulent reign over
England in the 1480s, he introduced a system designed to keep the accused out
of custody before trial. This was a rather long time ago, mind you, and bail
was a novel reform. Back then, the accused would spend a long time imprisoned
before they went to trial—sometimes years.

Bail was designed to ameliorate all of
that. The concept is simple: once accused of a crime, you have the right to
post bail—a monetary amount—that would keep you out of jail before trial and
conviction. That way, you would not feel pressured into going to trial or the
delays before trial would be less burdensome.

The concept of bail was carried over
to the American colonies two hundred years after Richard III. By the time we
got around to writing up the Bill of Rights in the federal constitution, bail
was part of our legal system. But there was still a problem.

Not everyone can afford bail. Even though bail was
designed to ensure pretrial liberty, the amounts could be too high for any
person to meet. It would effectively make bail pointless. The Constitution
addresses this with the Eighth Amendment that not only prohibits “cruel and
unusual” punishment, but guarantees that bail amounts are not “excessive.”

In the last three hundred or so years,
bail has been getting steadily higher and higher. That should be no surprise.
Everything costs more compared to 1789. What started happening was that businesses
would post a bond for an individuals who couldn’t afford to pay the whole amount.
The bond was a surety to the court that allowed the accused to get out of a jail
before trial and sentencing.

But not everyone can afford a bail
bond. What about them? Should they be allowed to get out of jail too? Many
these days think so. Who determines bail?

Let’s say you get arrested on a Friday
night at the start of a three-day weekend. Courts are closed until Tuesday.
Depending on the crime, the police will set bail according to a fixed schedule.
If you can afford to post a bond with a bail bonds man or pay the amount
outright, great. You’re free to go.

But if you can’t, you have to wait to
get in front of a judge and ask that bail be reduced to amount you can afford
to pay. But that’s four days and three nights away. By then, especially if it’s
a minor offense, you may want to get out, settle your case regardless of any
defenses, and be done with it. It happens more than you’d like to think.
Statistics show that 70% of all incarcerated people nationwide are in what we
call pretrial custody—they haven’t been sentenced and are waiting for trial.

So is that okay? Maurice Walker didn’t
think so. Walker was arrested in the City of Calhoun, Georgia for the offense
of being a “pedestrian under the influence” on the Thursday before the Labor
Day weekend. He’s poor and has a serious mental health disability. He could not
afford the bail set by the police. Because of the court’s scheduling days, he
didn’t get in front of a judge to lower his bail or release him before trial
until the day after Labor Day. Walker spent a total of six days in jail without
access to his medication.

Walker sued the city on the grounds that the bail fixing
scheme discriminates against the poor. The federal court agreed and ordered the
city to implement constitutional post-arrest procedures. The city, however,
appealed and it’s grinding its way through the legal system.

Last week, the Department of Justice surprised everyone
and joined Walker’s appeal. The DOJ agreed that the bail-fixing scheme
unconstitutionally discriminates against the indigent.

We will have to wait and see what happens in Georgia. So
far, Hawaii’s bail-fixing scheme has not been challenged. But there may be a
lot of Maurice Walkers in the wings.